Commercial Bank v. Chicago, St. Paul & Kansas City Railway Co.

Per Curiam: Where the Appellate Court finds the facts different from the trial court, and incorporates such finding in its final judgment, under the statute the finding of facts is conclusive. Under the facts as found, did the Appellate Court err in holding that the plaintiff could not recover? A common carrier, to discharge his liability for goods transported by delivery, must deliver to the person who is lawfully entitled to receive the same. The consignee is presumptively the owner of the goods, and must be treated by the carrier as such owner until he has notice to the contrary, and delivery to him without notice will discharge the carrier. (Ray on Carriers, 896; Hutchinson on Carriers, sec. 130.) The carrier should ascertain whether a bill of lading was delivered to the shipper, and if so, he should retain the property until demanded by one claiming under that title. (Furman v. Pacific Railroad Co. 106 N. Y. 579; City Bank v. Rome, etc. Railroad Co. 44 id. 136; First Nat. Bank of Peoria v. Northern Railroad Co. 58 N. H. 203.) Too great care cannot be exercised in respect of the right of the person to whom the delivery is made. (Ibid.) The question in this case is, whether a bill of lading deliverable to order, when attached to a time draft, and forwarded, with the draft, for collection without any special instructions, may be surrendered to the drawee on his acceptance of the draft, or whether the bill of lading, after acceptance, should still be retained by the person to whom it has been sent. Whatever may be the rule in the case of a sight draft attached to the bill of lading, the authorities seem to hold that a bill of lading deliverable to order, when attached to and forwarded with a time draft sent without special instructions to an agent for collection, may be surrendered to the drawee on his acceptance of the draft, and that it is not the agent’s duty to hold the bill of lading after such acceptance. In the absence of any agreement to the contrary, the inference to be drawn from a time draft accompanied by a bill of lading is, that the transaction amounts to a sale on credit, and that the bill of lading is a security for the accej>tance, and not for the payment of the draft. (National Bank v. Merchants’ Bank, 91 U. S. 92; Porter on Bills of Lading, sec. 521.) In the section cited the author says: “The property acquired in the goods covered by a bill of lading by one to whom the latter is pledged as collateral security for the discount of the draft drawn against it, is, of course, a special property. His title, in other words, is conditional. In the case of a time draft, it is conditional upon the consignee’s acceptance, and by such acceptance it is divested. The title and the right of possession at once pass to the consignee, and the former holder is left recourse only against the consignee as acceptor. The pledge is a pledge to secure acceptance, and the title of the pledgee is, therefore, extinguished when the purpose of the pledge is thus fulfilled.” Or it may be expressly stipulated that the bill of lading shall secure not only the acceptance, but the payment of the draft drawn against it. In such case the pledgee’s title would not be divested by acceptance, but would continue until the draft had been paid. In the National Bank case, supra, it is among other things said: “In the absence of any express arrangement to the contrary, the acceptor, if a purchaser, is clearly entitled to the possession of the goods on his accepting the bill, and thus giving the vendor a completed contract for payment. This would not be doubted, if, instead of an acceptance, he had given a promissory note for the goods, payable at the expiration of the, stipulated credit. In such a case it is clear that the vendor could not retain possession of the subject of the sale after receiving the note for the price. The idea of a sale on credit is, that the vendee is to have the things sold on his assumption to pay, and before actual payment. The consideration of the sale is the note. But an acceptor of a bill of exchange stands in the same position as the maker of a promissory note. If he has purchased on credit, and is denied possession until be shall make payment, the transaction ceases to be what it was intended, and is converted into a cash sale.” Under the authorities we think it is plain that the drawee, by acceptance of the draft, becomes entitled to the goods shipped and to have the bill of lading surrendered or indorsed to him. The transfer of the bill of lading in such case operates to clothe the acceptor with evidence of title to the goods as the purchaser. As held in the case of National Bank v. Merchants’ Bank, supra, the holder of a bill of lading, who has become such by indorsement and by discounting the draft drawn against the consigned property, succeeds to the right of the shipper, and has the same right to demand acceptance of the accompanying draft, and no more, and if the shipper cannot require such acceptance without surrendering the bill of lading, neither can the holder. The drafts were originally sight drafts, but the parties in interest, by agreement, changed them, allowing twenty days after sight for payment. After such change they were accepted, and the acceptors became entitled to the bills of lading, and the defendant, by delivering the goods to them, did not incur any liability. Counsel for appellant have cited Newcomb v. Boston and Lowell Railroad Co. 115 Mass. 230, as an authority sustaining their view. We find no fault with the law declared in that case, but there the drafts involved were sight i) drafts, and the law as there laid down can have no application to this case. Ontario Bank v. New Jersey Steamboat Co. 59 N. Y. 510, has also been cited. In that case plaintiff brought an action against the defendant, as common carrier, for the alleged conversion of a quantity of wool, but on a trial he failed to recover, and the judgment, on appeal, was affirmed. The decision of the case, however, turned on a question not here involved. If there had been an agreement that the bill of lading should secure.not only the acceptance but the payment of the drafts, plaintiff might be entitled to recover'. But such was not the case. We think the judgment, on the facts as found, fully sustained by authority, and it will be affirmed. ' Judgment affirmed.